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2017 Supreme(Gau) 290
IN THE HIGH COURT OF GAUHATI
AJIT SINGH, MANOJIT BHUYAN, JJ.
SMTI BISMITA SAIKIA – Appellant
VS
PRANJAL DUTTA – Respondents
Review Petition No.85 of 2016 in Mat. App. No.12 of 2015
Decided on : 04-04-2017
Advocate Appeared:
For the Appellant : Ms. P Barman and Ms.B Saikia, learned counsel
For the Respondent: Mr. KK Mahanta, learned senior counsel assisted by Ms. M Borah and Ms. S Ghosh, learned counsel
Headnote:
Petition for divorce - Cruelty - Extra marital relationship - Decreed - Applicant and non-applicant are wife and husband - They were married according to Hindu Rites and Custom - Unfortunately, matrimonial differences arose between them as a result of which non-applicant filed a petition for divorce mainly on ground of cruelty - Trial court held that non-applicant has succeeded in proving cruelty on him by applicant and decreed petition for divorce vide judgment dated - Aggrieved, applicant filed Mat. Appeal No. which has been dismissed by Division Bench, vide order dated - Present proceeding, we have found that wife had alleged in her written statement that husband maintains extra marital relationship but she did not care to substantiate same - Therefore, in terms of law laid down in court view wife’s raising an allegation of infidelity against her husband without substantiating same gives husband/petitioner a right to get a decree of divorce – Held, It is clear that Division Bench dismissed applicant’s appeal on ground that though she made an allegation of extra-marital relationship in her written statement against non-applicant she did not care to substantiate and this gave a right to get a decree of divorce in favour of non-applicant - It is on this ground alone, Division Bench affirmed decree of divorce in favour of non-applicant without probing into other allegations levelled against applicant - On contrary, in written statement applicant has in fact denied having made allegation of extra-marital affair against non-applicant which he pleaded in his petition for divorce - Apparently, Division Bench has completely misread pleadings of applicant - This being the situation, finding arrived at in paragraphs 19 and 20 of order is perverse and stands vitiated - Count accordingly set aside order dated and direct for re-hearing of applicant’s appeal on merit - Review petition is allowed.
1. This review petition is directed against the order dated 24.6.2015 passed by a Division Bench of this court, whereby applicant’s Mat. Appeal No.12/2015 has been dismissed.
2. The applicant and non-applicant are wife and husband. They were married according to the Hindu Rites and Custom on 18.1.2009. Unfortunately, matrimonial differences arose between them, as a result of which, non-applicant filed a petition for divorce mainly on the ground of cruelty. The trial court held that non-applicant has succeeded in proving cruelty on him by the applicant and decreed the petition for divorce vide judgment dated 15.9.2014. Aggrieved, the applicant filed Mat. Appeal No. 12/2015, which has been dismissed by the Division Bench, vide order dated 24.6.2015. While dismissing applicant’s appeal, the Division Bench in paragraphs 19 and 20 of the order has held as under:
“19. In our present proceeding, we have found that the wife had alleged in her written statement that the husband maintains extra marital relationship, but she did not care to substantiate the same. Therefore, in the terms of law, laid down in Vijay Kumar Ramchandra Bhate (Supra), in our view, wife’s raising an allegation of infidelity against her husband without substantiating the same gives the husband/petitioner a right to get a decree of divorce.
20. Since the petitioner is entitled to a decree of divorce on that count also, we are not inclined to probe some other allegations leveled against the wife/opposite party.”
3. From the above quoted paragraphs, it is clear that Division Bench dismissed applicant’s appeal on the ground that though she made an allegation of extra-marital relationship in her written statement against non-applicant, she did not care to substantiate and this gave a right to get a decree of divorce in favour of non-applicant. It is on this ground alone, the Division Bench affirmed the decree of divorce in favour of non-applicant without probing into other allegations levelled against the applicant. However, on perusal of the entire written statement, particularly, paragraph 32, we have found no allegation of extra-marital affair having been made by the applicant against non-applicant. On the contrary, in the written statement, the applicant has, in fact, denied having made allegation of extra-marital affair against the non-applicant which he pleaded in his petition for divorce. Apparently, the Division Bench has completely misread the pleadings of applicant. This being the situation, the finding arrived at in paragraphs 19 and 20 of the order is perverse and stands vitiated. We accordingly set aside the order dated 24.6.2015 and direct for re-hearing of applicant’s appeal on merit.
4. The review petition is allowed.
